"We are deeply dismayed at the U.S. Court of Appeals' decision to affirm holding Judith Miller in contempt, and at what it means for the American public's right to know," Times Publisher Arthur Ochs Sulzberger Jr. said in a statement. "If Judy is sent to jail for not revealing her confidential sources for an article that was never published, it would create a dangerous precedent that would erode the freedom of the press."
Reid Cox of the Center for Individual Freedom, which promotes access to information, said the decision will dry up reporters' access to sources and the public will suffer.
Judith Miller of the New York Times and Matthew Cooper of Time magazine face jail time if they continue to refuse to answer questions before a grand jury.
"Though we often say the public has a right to know, the press is the conduit for the public's knowledge," Cox said. "If reporters have to fear jail every time they get a confidential tip, we will all know less."
Twenty-five American journalists have been jailed over concealed sources and information since 1961. Freelance writer Vanessa Leggett, who in 2001 refused to divulge the sources of information in a book about a Texas man acquitted of hiring someone to kill his wife, served the longest sentence, 5 1/2 months.
In yesterday's ruling, the panel said the hope of Cooper and Miller to conceal information from Fitzgerald is similar to a Kentucky reporter's request in a criminal drug investigation in 1972. In that case, Branzburg v. Hayes, the Supreme Court ruled that the reporter, who witnessed members of a drug ring manufacturing hashish, could be compelled to reveal confidential sources crucial to solving the crime. The court found the First Amendment did not protect the journalist.
In that case, Judge David B. Sentelle wrote, "the Court stated that it could not 'seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source . . . on the theory that it is better to write about a crime than to do something about it.' "
But two of the three judges said federal common law might protect journalists in other cases. Judge David S. Tatel, in a 41-page concurring opinion, wrote that the sources could remain confidential, "were the leak at issue in this case less harmful to national security or more vital to public debate."
Judge Karen LeCraft Henderson wrote a third concurring opinion.
Law professors and media lawyers said the judicial division demonstrates the need to clarify the law regarding when a reporter can fairly promise confidentiality and the need for Congress to adopt a federal shield law for journalists.
The Newspaper Association of America and other media organizations are supporting legislation that would put into law the Justice Department's 30-year-old guidelines on when to seek information from reporters. The legislation would provide an absolute privilege to reporters seeking to protect confidential sources and a qualified privilege for other unpublished information.
The appellate panel, citing secret evidence Fitzgerald had presented to them, said this case was different from the classic uncovering of wrongdoing by reporters relying on unnamed sources. Tatel wrote that the purpose of these government leaks, based on a story that Cooper wrote in the summer of 2003, appeared to be to smear a person who alleged the Bush administration exaggerated the strength of evidence justifying going to war with Iraq.
"While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires," Tatel wrote.